Notable dissent from denial of cert in case concerning the habeas certificate of appealability process

The Supreme Court issued this relative short order list this morning which concluded with an interesting dissent from the denial of certiorari authored by Justice Sotomayor and joined by Justice Jackson.  Here is how the six-page dissent gets started and ends:

A prisoner who seeks to appeal the denial of his petition for habeas corpus may do so only if “a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1).  Several Circuits have interpreted that requirement to mean that a certificate must issue so long as “one of the judges to whom the application was referred” votes to grant it. Thomas v. United States, 328 F.3d 305, 309 (CA7 2003); Rule 22.3 (CA3 2011) (similar language); Rule 22(a)(3) (CA4 2023) (same, explaining that “the authority for a single judge to issue a certificate derives from §2253”); Gen. Order 6.3(b) (CA9 2024) (“Pursuant to 28 U.S.C. §2253(c), a request to grant or expand a certificate of appealability may be granted by any one Judge on the assigned panel”).  In some courts, however, a panel majority can deny a certificate even if “a circuit . . . judge” on the panel votes to issue one.  See, e.g., Williams v. Kelley, 858 F.3d 464 (CA8 2017); Crutsinger v. Davis, 929 F.3d 259(CA5 2019); United States v. Ellis, 779 Fed. Appx. 570 (CA10 2019).  That latter practice deprived petitioner Lance Shockley of an appeal in this case.  I would have granted certiorari to resolve the split and decide whether the Courts of Appeal can dismiss an appeal after a judge votes to grant a certificate….

This case raises an entrenched Circuit split over an important question of statutory interpretation: Can a certificate of appealability be denied notwithstanding a circuit judge’s vote to grant it?  Unfortunately, the Court leaves the issue for another day. The Courts of Appeal, however, remain free to reconsider their operating rules and align them with the text and purpose of § 2253.